Sorry! Not the First Freedom

INTERNALLY DISPLACED PERSON

March 8, 2017

In my previous column, “Religious Freedom: We Keep Using Those Words,” I examined the period roughly between 1774 and the end of the nineteenth century. I noted that “there is little, if anything, in the period immediately surrounding the writing and ratification of the Constitution that provides guidance as to how competing interests” involved in cases such as that of Barronelle Stutzman should be adjudicated.

I also pointed out that the legal reasoning in the 19th-century case that does provide such guidance, Reynolds v. United States—which involved the Mormon practice of polygamy—“with its distinction between beliefs and opinions, and actions and practices, was pretty much 180 degrees from what today’s defenders of religious freedom would maintain.”

The 20th and 21st centuries provided the kind of guidance that the preceding two centuries did not. But that guidance brought to mind the “spare” that Bugs Bunny gave Eddie Valiant in “Who Framed Roger Rabbit?” I don’t think we want it.

That’s because, taken as a whole, it does not affirm our belief that religious freedom is the “First Freedom.”

Let me be clear: I am speaking descriptively, not proscriptively. I am describing the way, historically speaking, things are, not the way they should be.

As noted previously, the Free Exercise Clause wasn’t deemed applicable to the states until 1940. But that’s not to say that the Supreme Court didn’t decide cases involving the infringement of what most of us would regard as religious freedom by state and local governments before that.

The targets of the Act were parochial schools, which in 1922 overwhelmingly meant Catholic schools. (An historical aside: I am both amused and bemused by Christians who speak of their current misgivings about public schools as if this were something new or at least recent. It’s not. The beginning of what was then known as the “Common School Movement” coincided with—that is, was largely occasioned by—the start of large-scale Catholic immigration, German as well as Irish, to the United States. Catholics viewed the public schools as threats to the faith of their children, and so they created what might be called “Christian Schools 1.0.” The response from the public school establishment and its allies was to try and put these schools out of business. Sound familiar?)

The Court overturned the Oregon law but not on religious freedom grounds, since the First Amendment, including the Free Exercise Clause, was yet not deemed to be applicable to the states.

Instead, it overturned the law because it “unreasonably [interfered] with the liberty of parents and guardians to direct the upbringing and education of children . . . under their control.” It added that “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

Now, this sounds good, and it’s certainly better than upholding the Oregon law, but it’s not the same thing as upholding the free exercise of religion. The impact on the free exercise of religion is a byproduct of the protection of some other constitutional right, such as, in this case, the liberty interests of the parents. The result would have been the same if Oregon parents had wanted to send their children to private schools for reasons that had nothing to do with their religion. (In fact, the other parties to the case were non-religious private schools arguing that their property rights were impinged by the Oregon law.)

In Lamb’s Chapel, the local school district denied an evangelical church permission to show a series of films on childrearing by James Dobson on school grounds, while allowing non-religious films on the same subject to be shown there. In Rosenberger, the University of Virginia denied a Christian student publication the same funding it provided to every other sort of student publication.

While both Christian groups prevailed, they prevailed because the actions of governmental officials were deemed to be instances of viewpoint discrimination, the disfavoring of a particular opinion or point-of-view, and thus a violation of the groups’ right to free speech.

While this outcome is far preferable to the alternative, once again, the free exercise of religion, in this case be able to speak about your faith outside the four walls of the church, was a byproduct of some other, presumably more important, constitutional right, such as the right to free speech. It’s not too far a stretch to say that, legally speaking, Christian (or any other religious) faith is simply one opinion among many, none of which are more intrinsically worthy of protection than the others.

Put starkly, as far as the Constitution, as interpreted in the case law, is concerned, there is no meaningful difference between a Focus on the Family video series and Nazis marching in Skokie, Illinois.

Now, there have been instances where the right to the free exercise of religion wasn’t ancillary to the protection of some other right. As I have noted elsewhere, these cases nearly always involved religious minorities such as the Amish, Seventh-Day Adventists, or, especially, Jehovah’s Witnesses. Between 1938 and 1955, the Supreme Court heard 40 cases, known collectively as the “Jehovah’s Witnesses Cases,” involving the sect. Cantwell v. Connecticut, in which the Free Exercise Clause was first made applicable to the states, was one of these cases.

What these cases had in common was that they involved small groups and, thus, upholding their free-exercise claims had a limited impact, at least at the time of the rulings. Jehovah’s Witnesses could be exempt from saluting the flag or saying the Pledge of Allegiance, and Amish parents could keep their children out of school, without running the risk of turning every citizen into a law unto himself. Call it “one-off free exercise.”

But by the time the Court heard Employment Division v. Smith, the social and cultural context had changed a great deal from time of the “Jehovah’s Witnesses cases” and even from the time of Yoder. There had been an explosion of religious pluralism—we’ve gone from having virtually no Muslim or Hindu presence to millions of each—and a weakening of the institutions that defined mainstream belief, whether Protestant, Catholic or Jewish. In Ross Douthat’s formulation, we had become a “nation of heretics.”

The potential for every citizen to become a law unto himself had increased exponentially. At the very least, the potential for virtually endless litigation on what constituted an acceptable infringement for free exercise was a genuine concern for the Court.

That’s why I have some sympathy for Justice Scalia’s opinion “that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”

The problem with what has come to be called the “general applicability” standard was that, in the words of Michael Farris, the CEO of the Alliance Defending Freedom (among other things), it “killed the free exercise of religion.” At least it killed it in the sense that religious freedom advocates like the Colson Center and the ADF understand it: the ability to act on our sincerely held religious convictions in the public square, including the marketplace, and not just our homes and churches.

And that brings me back to my earlier assertion that there’s scant evidence that, legally speaking, religious freedom, as we define that expression, is the “first freedom.”

On the contrary, religious freedom is, at least as often as not—I’m being very generous here—a byproduct of other constitutional rights, especially freedom of speech. And, so long as government doesn’t single out believers, nothing in the First Amendment prohibits its running roughshod over a person’s religious scruples, as Mrs. Stutzman has learned the hard way.

Again: I am describing the way things are, not the way they should be.

Now that I’ve spent nearly 3000 words doing that, my next and probably final column in this series will be on what we can do about it.

Image courtesy of Dynamic Graphics at Thinkstock by Getty Images.

Roberto Rivera is senior fellow at the Chuck Colson Center for Christian Worldview. For nearly 20 years he has been chief writer for the BreakPoint Radio commentary program. His “Internally Displaced Person” is a mostly regular column at BreakPoint.org. His writings have appeared in Touchstone, First Things, and Sojourners. He lives with his son in Alexandria, Virginia.

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ElrondPA

It is, however, lexically the First Freedom in the Bill of Rights: It is the first one enumerated in the First Amendment. Is it likely the order is purely accidental?